Stonacek v. City of Lincoln

And on these facts, the detective’s repeated advisements
that Gorup was not required to consent to the search car-
ries additional significance in that it reinforced the fact that
Gorup had real choice. Gorup did not testify at the suppres-
sion hearing, and there is nothing in this record from which
I can conclude that at the time those warnings were given,
Gorup knew or reasonably could have believed that consent
would be futile because the detectives had already found the
incriminating evidence which had been concealed in the bag
in his apartment. Therefore, I would affirm the judgment of
the district court.
H eavican, C.J., joins in this dissent.
sTonACek v. CITy of lInColn 	869
Cite as 279 neb. 869
Troy and SHari STonacek , appelleeS,
v. ciTy of lincoln, a poliTical
SubdiviSion, appellanT.
bradley e. SHeaff and Jennifer k. SHeaff, appelleeS,
v. ciTy of lincoln, a poliTical
SubdiviSion, appellanT.
G eorGe briSTol and lori briSTol , appelleeS,
v. ciTy of lincoln, a poliTical
SubdiviSion, appellanT.
782 n.W.2d 900
filed May 14, 2010. 	nos. s-09-230 through s-09-232.
1. Statutes. The meaning of a statute is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
3. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
pursuant to the Political subdivisions Tort Claims Act, the factual findings of the
trial court will not be disturbed on appeal unless they are clearly wrong. When
determining the sufficiency of the evidence to sustain the trial court’s judgment,
it must be considered in the light most favorable to the successful party; every
controverted fact must be resolved in favor of such party, and it is entitled to the
benefit of every inference that can be deduced from the evidence.
4. Motions for New Trial: Appeal and Error. A motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

5. Political Subdivisions Tort Claims Act: Immunity: Waiver. The Political
subdivisions Tort Claims Act allows a limited waiver of a political subdivision’s
sovereign immunity. This waiver is limited by specifically delineating claims that
are exempt from being brought against a political subdivision.
6. Negligence. The threshold issue in any negligence action is whether the defend-
ant owes a legal duty to the plaintiff.
7. Statutes: Legislature: Intent: Torts: Liability. A court may determine that a
statute gives rise to a tort duty to act in the manner required by the statute where
the statute is enacted to protect a class of persons which includes the plaintiff, the
statute is intended to prevent the particular injury that has been suffered, and the
statute is intended by the legislature to create a private liability as distinguished
from one of a public character.
8. Statutes: Legislature: Intent: Torts. Consideration of the legislature’s purpose
in enacting a statute is central to the analysis of whether the statute defines a duty
in tort and creates private civil liability.
9. Negligence: Federal Acts: Liability. The federal misrepresentation exception
insulates the government against liability for conveying false or inaccurate infor-
mation, whether that information was conveyed based on willful or negligent
misrepresentation.
10. Tort Claims Act: Negligence. Where the gravamen of the complaint is negligent
performance of operational tasks rather than misrepresentation, the state cannot
rely upon the misrepresentation exception in the state Tort Claims Act.
11. Judges: Words and Phrases. A judicial abuse of discretion exists when a judge,
within the effective limits of authorized judicial power, elects to act or refrain
from action, but the selected option results in a decision which is untenable and
unfairly deprives a litigant of a substantial right or a just result in matters submit-
ted for disposition through the judicial system.
Appeals from the District Court for lancaster County:
STeven d. burnS, Judge. Reversed and remanded with direc-
tions to dismiss.
John 	V. 	Hendry, 	lincoln 	City 	Attorney, 	and 	steven
Huggenberger for appellant.
Gary J. nedved, of keating, o’Gara, nedved & Peter, P.C.,
l.l.o., for appellees.
H eavican, 	c.J., 	WriGHT, 	connolly, 	G errard, 	STepHan,
MccorMack, and M iller-lerMan, JJ.
M iller-lerMan, J.
nATURe of THe CAse
This appeal involves three separate lawsuits brought by
homeowners, appellees, who built homes in an area near a
870 	279 nebRAskA RePoRTs

tributary of the Cardwell branch stream and experienced flood-
ing in their homes. The lawsuits were consolidated by the
district court for lancaster County. numerous parties named
as defendants settled prior to trial, leaving the City of lincoln,
appellant, as the sole defendant at trial. Appellees claimed
that the city was negligent when it did not give them the
most recent information regarding the flood elevations of their
properties prior to building their homes and issued various
permits relating to the development in which their homes
were located. The city argued, inter alia, that it was immune
from suit based on exceptions to neb. Rev. stat. § 13-910
(Reissue 1997) of the Political subdivisions Tort Claims Act
(Tort Claims Act) and that it did not owe appellees a duty
under the flood plain management statutes, neb. Rev. stat.
§ 31-1001 et seq. (Reissue 1998), and the state of nebraska
Department of natural Resources (Department) administrative
regulations promulgated thereunder or the lincoln Mun. Code
§ 27.55.040(g) (1996). The district court determined that the
city owed appellees a duty and therefore the city was liable,
and the court awarded damages. The district court denied the
city’s consolidated motion for new trial, and the city appeals.
We reverse the district court’s decisions and remand the causes
with directions to dismiss the complaints.
sTATeMenT of fACTs
Appellees, Troy and shari stonacek, bradley e. sheaff
and Jennifer k. sheaff, and George bristol and lori bristol,
each purchased a home in the Cardwell Woods development,
which was located near a tributary to the Cardwell branch
stream. Appellees have all experienced flooding in their homes
and claim that the city was negligent in managing infor-
mation regarding the base flood elevations for the Cardwell
Woods development and issuing various permits related to
the development.
In designating its flood zones, the city has adopted the
federal 	emergency 	Management Agency’s 	“Digital 	flood
Insurance Rate Map” (feMA map). The feMA map was
developed as part of the national flood Insurance Program and
shows several different flood zones.
sTonACek v. CITy of lInColn 	871
Cite as 279 neb. 869

because some of the zones on the feMA map that are gen-
erally designated as flood plains have not been studied, when
a building permit application is made for a property in or near
an area designated on the feMA map, it has been the prac-
tice of the city to request that the Department conduct a flood
plain study.
In December 1996, the city requested that the Department
conduct a flood plain study of the previously unstudied tributary
to the Cardwell branch stream. The request was made based on
building permit applications for homes in the Cardwell Woods
development, an area that was adjacent to the tributary. These
permits were not sought by appellees.
In response to this request, in January 1997, the Department
provided the city with a flood plain map which contained
flood elevations along with other data for the tributary to the
Cardwell branch stream. The map did not show all of the prop-
erty that was being developed in the subdivision, but, rather,
showed the property near and adjacent to the tributary of the
Cardwell branch stream. The district court determined that the
study conducted by the Department found flood plain eleva-
tions along the tributary that were substantially different from
the flood plain elevations which had been found in the feMA
map. The feMA map showed a flood plain elevation for the
area of 1201 feet above sea level, whereas the Department’s
map showed a flood plain elevation ranging from 1206 to 1209
feet above sea level.
subsequent to the December 1996 Department study, appel-
lees purchased land and built homes along the tributary. The
stonaceks purchased their lot in May 1998. The sheaffs pur-
chased their lot in August 1999. The bristols purchased their
lot in october 2003. The bristols’ lot was one of the lots
adjacent to the tributary to the Cardwell branch stream. The
stonaceks’ and sheaffs’ lots were not adjacent to the tribu-
tary. The record shows that in January 2006, the lincoln City
Council adopted changes to the local flood plain maps which
included all of appellees’ properties as being within the flood-
prone area.
Troy stonacek directly requested flood plain information on
his lot from the city before building commenced. The city’s
872 	279 nebRAskA RePoRTs

flood plain administrator provided stonacek with only the
feMA map information showing a flood plain elevation of 1201
feet above sea level. The sheaffs and the bristols received flood
plain information through their builders. All appellees acquired
building permits from the city’s building and safety office. In
each case, appellees were told either directly or through their
builders that their lots were not located in the flood plain. each
appellee’s building permit was issued based on the feMA map
which showed a flood plain elevation of 1201 feet above sea
level rather than the Department map which showed a flood
plain elevation of 1206 to 1209 feet above sea level. Appellees
were not informed that the Department map existed or that the
study had been conducted.
The three homes were constructed. The stonaceks’ base-
ment was built at an elevation of 1201.8 feet above sea level.
The bristols’ basement was built at an elevation of 1202.9
feet above sea level. The sheaffs’ basement was built at an
elevation of 1201.2 feet above sea level. each home experi-
enced flooding.
At trial, there was evidence that for at least some period of
time, the Department’s map was kept in the Cardwell Woods
development file in the city’s building and safety office. The
city acknowledged that the map had been misplaced and that
the city had requested a replacement. The information on the
map was not incorporated into the feMA map. At trial, it was
the city’s position that the Department map contained no infor-
mation pertinent to the inquiries of appellees or their building
permit applications, because the map did not establish a flood
plain elevation different from the feMA map, and, as to the
stonaceks and bristols, did not include their lots on the map.
In 2004, the U.s. Geological survey undertook a remap-
ping of the Cardwell branch area as part of a project to study
the flood plain elevations on the feMA map. The remapping
showed that along the tributary, the elevation of the 100-year
flood event corresponded with the Department map. Appellees
testified that when the U.s. Geological survey’s study was
presented to them in 2005, that was the first time they became
aware that the flood elevations of their properties were differ-
ent from those which had been provided by the city.
sTonACek v. CITy of lInColn 	873
Cite as 279 neb. 869

The stonaceks filed a complaint against the developer, the
engineer who did the engineering work related to the subdivi-
sion, the Realtor who sold their lot to them, and the realty com-
pany of the Realtor. In April 2006, the complaint was amended
to add the city as a defendant.
The sheaffs and the bristols filed complaints against the
developer, the engineer who did the engineering work related
to the subdivision, the Realtor who sold their lots to them,
the realty company, and the city. All of the defendants except
the city were dismissed from the suits after a settlement
agreement was reached. shortly thereafter, the three cases
were consolidated.
The controlling complaints alleged that the city was negli-
gent in the following ways:
a. In failing to advise [appellees] of the study provided
by the [Department] and the base flood elevation informa-
tion for the Cardwell Woods development.
b. In failing to follow the minimum standards for
flood 	plain 	management 	programs 	enacted 	by 	the
[Department].
c. In violating neb. Rev. stat. § 31-1019.
d. In issuing a permit to construct a residence on
[appellees’] property . . . .
e. In failing to require that the final plat for Cardwell
Woods contain[s] base flood elevation data . . . .
The pretrial order reflected these five allegations.
The district court bifurcated the proceedings as to liability
and damages. The liability trial was held on June 25 and 26
and July 25, 2007. At trial, the court considered appellees’
five claims of negligence. The city asserted various defenses,
including that the complaints were barred by the statute of
limitations, the statutory and other provisions relied on by
appellees did not create a duty to appellees, and it was immune
from suit based on exceptions to the Tort Claims Act. The city
made various motions seeking dismissal of the complaints. The
motions were denied.
on september 25, 2007, the district court issued a consoli-
dated order finding liability against the city. In its order, the
district court stated the following: (1) that the city had in its
874 	279 nebRAskA RePoRTs

possession from the Department more detailed and accurate
flood plain elevations than that displayed on the feMA map
prior to, and at the time when, appellees built their homes;
(2) that the director of the city’s building and safety office
had a duty to acquire from the Department the information
contained on the Department map; (3) that once obtained, the
director of the city’s building and safety office had a duty to
provide the data obtained from the Department to appellees
and their builders; (4) that had the city provided each appel-
lee with the map it possessed, appellees would either have
constructed their homes above the flood plain elevation shown
on the Department map or would not have purchased the prop-
erty where their homes are located; and (5) that the city was
negligent and the city’s negligence was a proximate cause of
damages to appellees.
After making these determinations, the district court con-
cluded that § 31-1001 and lincoln Mun. Code § 27.55.040(g)
created a duty that the city owed to appellees and that given
such duty, these provisions created a basis for civil liability.
With respect to the defenses under the Tort Claims Act, the
district court concluded that because the city had proved an
“adequate defense” for the claims of negligence identified in
the complaints as (d) and (e), based on the building permit
exception to the Tort Claims Act at § 13-910(4), it was immune
from liability as to claims (d) and (e) but that the city was not
immune from suit under other exceptions to the Tort Claims
Act. Claims (d) and (e) were effectively dismissed. for its
conclusion, the district court decided that the city “is negligent
in one of the ways alleged by the plaintiffs, and that the City’s
negligence has caused some damage to the plaintiffs.”
After the issuance of the order finding liability, the cases
came before the district court on the issue of damages on
December 1, 2008. In a subsequent consolidated order, the
court awarded appellees monetary damages. The city moved
for a new trial, and the motion was denied. The city appeals.
AssIGnMenTs of eRRoR
The city asserts, restated and summarized, that the district
court erred (1) when it failed to conclude that all claims were
sTonACek v. CITy of lInColn 	875
Cite as 279 neb. 869

exempt from suit under the Tort Claims Act after it properly
concluded that two permit-based claims were exempt; (2) when
it concluded that § 31-1001 et seq. and 258 neb. Admin. Code,
ch. 1 (2005), created a duty by the city to appellees; (3) when
it concluded that lincoln Mun. Code § 27.55.040(g) created a
duty to appellees and that no exception in the Tort Claims Act,
including the misrepresentation exception, applied to this neg-
ligence claim; and (4) when it denied the city’s consolidated
motion for new trial. because the resolution of these assign-
ments of error disposes of the cases, we do not recite or con-
sider the city’s remaining assignments of error.
sTAnDARDs of ReVIeW
[1,2] The meaning of a statute is a question of law. Kuhn
v. Wells Fargo Bank of Neb., 278 neb. 428, 771 n.W.2d 103
(2009). When reviewing questions of law, an appellate court
has an obligation to resolve the questions independently of the
conclusion reached by the trial court. Id.
[3] In actions brought pursuant to the Tort Claims Act,
the factual findings of the trial court will not be disturbed on
appeal unless they are clearly wrong. When determining the
sufficiency of the evidence to sustain the trial court’s judg-
ment, it must be considered in the light most favorable to the
successful party; every controverted fact must be resolved in
favor of such party, and it is entitled to the benefit of every
inference that can be deduced from the evidence. see Cerny
v. Cedar Bluffs Jr./Sr. Pub. Sch., 267 neb. 958, 679 n.W.2d
198 (2004).
[4] A motion for new trial is addressed to the discretion of
the trial court, whose decision will be upheld in the absence of
an abuse of that discretion. Poppe v. Siefker, 274 neb. 1, 735
n.W.2d 784 (2007).
AnAlysIs
The Dismissal of Claims (d) and (e) Did Not Require
Dismissal of All Five Claims Because Appellees’
Negligence Claims Are Not All Permit Based.
The city asserts that given the allegations and evidence, all
of appellees’ negligence claims stemmed from the issuance of
876 	279 nebRAskA RePoRTs

the building permits and that therefore, all five claims, not just
two, should have been dismissed under the permit-based excep-
tion to the Tort Claims Act at § 13-910(4). The city asserts that
the district court erred when it allowed three of appellees’ neg-
ligence claims identified as (a), (b), and (c) to go forward after
properly dismissing the two negligence claims identified as (d)
and (e) based on the permit exception to the Tort Claims Act.
We do not agree with the city’s characterization of the negli-
gence claims or its proposition that immunity under one excep-
tion to the Tort Claims Act necessarily should have resulted in
a dismissal of these complaints in their entirety.
[5] The Tort Claims Act allows a limited waiver of a politi-
cal subdivision’s sovereign immunity. This waiver is limited
by specifically delineating claims that are exempt from being
brought against a political subdivision such as the city. see
§ 13-910(1) to (12). The exception relative to permit-based
claims is found at § 13-910(4) and provides that the Tort
Claims Act shall not apply to “[a]ny claim based upon the issu-
ance, denial, suspension, or revocation of or failure or refusal
to issue, deny, suspend or revoke any permit, license, certifi-
cate, or order.”
based on this exception in the Tort Claims Act, the district
court determined that appellees’ claims of negligence in their
complaints identified as “d. . . . issuing a permit to construct
a residence” and “e. . . . failing to require that the final plat
for Cardwell Woods contain[s] base flood elevation data,”
were permit-based claims barred by the Tort Claims Act and
thus effectively dismissed these claims. see Rohde v. City of
Ogallala, 273 neb. 689, 731 n.W.2d 898 (2007). Appellees did
not file a cross-appeal challenging this ruling, and we need not
address the substantive correctness of this ruling.
At issue on appeal relative to § 13-910(4) is the argument by
the city that all of the claims of negligence flow from the issu-
ance of the building permits and, therefore, all of the claims
were barred by this provision of the Tort Claims Act and that
the district court erred when it failed to dismiss all the claims.
We find this assignment of error to be without merit.
After the dismissal of the two claims identified as (d) and
(e) in the complaints, three claims remained. The remaining
sTonACek v. CITy of lInColn 	877
Cite as 279 neb. 869

three allegations, (a), (b), and (c), set forth in appellees’
amended complaints, alleged that the city was negligent: “a.
In failing to advise [appellees] of the study provided by the
[Department] and the base flood elevation information for
the Cardwell Woods development. b. In failing to follow the
minimum standards for flood plain management programs
enacted by the [Department]. c. In violating neb. Rev. stat.
§ 31-1019.”
These three negligence claims do not arise out of the issu-
ance, denial, suspension, or revocation of or failure or refusal
to issue, deny, suspend, or revoke any permit, license, cer-
tificate, or order. see § 13-910(4). Rather, these claims and
the evidence surrounding them relate to the city’s compli-
ance with various statutory provisions and the city’s alleged
duty to advise appellees of accurate flood plain information.
The plain language of § 13-910(4) does not exempt these
claims from suit, and we conclude that the district court did
not err when it did not dismiss negligence claims (a), (b),
and (c) under the permit exception to the Tort Claims Act
at § 13-910(4).
The City Did Not Owe Appellees a Duty Based on § 31-1019
or the Department’s Regulations, and Claims (b) and (c)
Should Have Been Dismissed.
Appellees’ amended complaints and the trial record show
that appellees claimed the city was negligent in failing to
follow the minimum standards for flood plain management
programs, the flood plain management statutes at § 31-1019,
and the Department’s regulations. The district court concluded
that these authorities created a duty to appellees to maintain
accurate mapping giving rise to civil liability. The city asserts
the district court erred in concluding that these authorities
created a duty and that the district court erred when it failed
to dismiss appellees’ negligence claims (b) and (c) based on
these provisions. We agree with the city and conclude that the
district court erred as a matter of law when it concluded these
provisions created a duty for negligence purposes and failed to
dismiss claims (b) and (c).
878 	279 nebRAskA RePoRTs

At issue in this assignment of error are the following
provisions:
section 31-1019, which stated in part:
When the [Department], a federal agency, or any other
entity has provided a local government with sufficient
data and maps with which to reasonably locate within its
zoning jurisdiction any portion of the flood plain for the
base flood of any watercourse or drainway, it shall be the
responsibility of such local government to adopt, admin-
ister, and enforce flood plain management regulations
which meet or exceed the minimum standards adopted
by the [Department] pursuant to subdivision (5) of sec-
tion 31-1017.
The 	Department’s 	“Minimum 	standards 	for 	floodplain
Management 	Programs” 	are 	standards 	“for 	the 	adoption,
administration, and enforcement of floodplain management
regulations by cities, villages, and counties in nebraska in
accordance with section 31-1019, R.R.s. 1943.” see 258 neb.
Admin. Code, ch. 1, § 001.
The district court concluded that under the standard set forth
in this court’s decision in Claypool v. Hibberd, 261 neb. 818,
626 n.W.2d 539 (2001), the flood plain management statutes
found at § 31-1001 et seq. and the Department’s administrative
regulations created a general duty to the public at large and a
private right of action.
[6,7] In addressing the city’s assignment of error, we note
that the threshold issue in any negligence action is whether
the defendant owes a legal duty to the plaintiff. see Claypool,
supra. If there is no legal duty, there is no actionable negli-
gence. see id. In determining whether a statute or ordinance
creates a duty, we stated in Claypool that
[a] court may determine that a statute gives rise to a tort
duty to act in the manner required by the statute where
the statute is enacted to protect a class of persons which
includes the plaintiff, the statute is intended to prevent the
particular injury that has been suffered, and the statute is
intended by the legislature to create a private liability as
distinguished from one of a public character.
sTonACek v. CITy of lInColn 	879
Cite as 279 neb. 869

261 neb. at 825, 626 n.W.2d at 545. see, also, Fimple v.
Archer Ballroom Co., 150 neb. 681, 35 n.W.2d 680 (1949)
(considering duty owed under city ordinance).
[8] In Claypool, we recognized that where the legislature
has not by its express terms or by implication provided for
civil tort liability, under principles of judicial restraint, it is
prudent that we not do so. In Claypool, we made clear that
consideration of the legislature’s purpose in enacting a statute
is central to the analysis of whether the statute defines a duty
in tort and creates private civil liability.
section 31-1001 sets forth the legislative purpose for the
flood plain management statutes as follows:
(2) The purposes of sections 31-1001 to 31-1023 shall
be to:
(a) Accelerate the mapping of flood-prone areas;
(b) Assist local governments in the promulgation and
implementation of effective flood plain management regu-
lations and other flood plain management practices;
(c) Assure that when state lands are used and state-
owned and state-financed facilities are located and con-
structed, flood hazards are prevented, flood losses are
minimized, and the state’s eligibility for flood insurance
is maintained; and
(d) 	encourage 	local 	governments 	with 	flood-prone
areas to qualify for participation in the national flood
insurance program.
The foregoing language of the legislative purpose deals with
the general duties of the governmental entities in managing
flood plains and remaining eligible for insurance. The focus of
the statute is on state-owned lands and projects. The language
of the statute does not explicitly create a private civil tort
liability based on a failure to properly implement the requisite
flood plain management.
In addition to the language regarding purpose, we consider
the explicit remedies provided in the flood plain management
statutes, because the remedy informs us about the scope of
the duty. As the city points out, § 31-1020 sets forth a remedy
for landowners where a city fails to follow § 31-1019. section
31-1020 stated in part:
880 	279 nebRAskA RePoRTs

If a local government does not adopt and implement
flood plain management regulations in accordance with
section 31-1019 within one year after flood hazard data
and maps have been provided to it pursuant to such sec-
tion, the [Department] shall, upon petition of at least ten
percent of the owners of the land located within the flood
plain of the base flood delineated in such maps, or upon
the written request of the board of directors of the natural
resources district in which such land is located, conduct a
public hearing after providing notice pursuant to section
31-1022. If the [Department] finds after such hearing that
the data and maps available are sufficient to reasonably
locate the boundaries of the base flood, the [Department]
shall determine and fix by order the boundaries of the
base flood and, where deemed appropriate, the boundaries
of the floodway within the zoning jurisdiction of such
local government. If within three months after the date
of such order the local government still has not adopted
and implemented flood plain management regulations for
the area subject to such order in accordance with section
31-1019, the [Department] shall be vested with the power
and authority to adopt flood plain management regula-
tions for the area and shall adopt and promulgate such
regulations for the identified base flood within the zoning
jurisdiction of such local government.
We believe that the foregoing provisions of a statutory rem-
edy for landowners under § 31-1020 are inconsistent with a
purported legislative intention to create a tort duty. further, the
plain language of § 31-1019 does not intend to prevent the par-
ticular injury that has been suffered by appellees. see Claypool
v. Hibberd, 261 neb. 818, 626 n.W.2d 539 (2001).
We apply a similar analysis to title 258, chapter 1, of the
nebraska Administrative Code, which merely instructed the
Department to implement the statutory requirements regarding
flood plain management found in § 31-1019 and did not create
a duty giving rise to civil tort liability.
because these authorities do not expressly or by implica-
tion indicate that they create a private tort liability, the district
court erred in concluding that appellees had a private action
sTonACek v. CITy of lInColn 	881
Cite as 279 neb. 869

in which the city owed appellees a duty under § 31-1019, and
258 neb. Admin. Code, ch. 1. Accordingly, because there is no
duty owed under these authorities, appellees’ negligence claims
based on these authorities fail and the district court erred when
it failed to dismiss negligence claims (b) and (c).
Appellees’ Claims Based on Lincoln Mun. Code
§ 27.55.040 Regarding Alleged Failure To Advise
Appellees of the Department Map Is a Claim for
Negligent Misrepresentation and Is Barred
by the Tort Claims Act, and Claim (a)
Should Have Been Dismissed.
The city asserts that the district court erred when it found
liability and awarded damages to appellees based on appellees’
negligence claim (a), which alleged that the city was negligent
for failing “to advise [appellees] of the study provided by the
[Department] and the base flood elevation information for
the Cardwell Woods development.” The city refers us to the
exception to the Tort Claims Act found at § 13-910(7), which
excepts from the Tort Claims Act claims for misrepresentation.
specifically, the city argues that the gravamen of negligence
claim (a) is that the city negligently misrepresented the flood
plain data and that this claim is exempt from being action-
able under the misrepresentation exception of the Tort Claims
Act. Given the jurisprudence surrounding the misrepresentation
exception, we agree with the city and conclude that the district
court erred when it failed to dismiss claim (a), which alleged a
failure to advise appellees.
In reaching its conclusion that the city was liable to appel-
lees based on its purported failure to advise appellees of the
Department map as alleged in claim (a), the district court relied
primarily on lincoln Mun. Code § 27.55.040 as a source of
this duty to appellees. At the time appellees’ building permits
were issued, § 27.55.040 provided:
It shall be the duty of the Director of building and safety
to enforce this chapter. His duties shall include, but not
be limited to:
. . . .
(g) When base flood elevation data have not been pro-
vided on the official map, obtain, review, and reasonably
882 	279 nebRAskA RePoRTs

utilize any base flood elevation and floodway data avail-
able from a federal, state, or other source, as criteria for
requiring that new construction, substantial improvements,
or other developments in flood plain meet the standards of
this chapter.
The district court declined to characterize the failure to advise
alleged in claim (a) as a “misrepresentation” and therefore con-
cluded that the Tort Claims Act provision exempting claims for
misrepresentation was inapplicable. see § 13-910(7). The dis-
trict court erred as a matter of law when it deemed § 13-910(7)
inapplicable and failed to dismiss claim (a).
We need not decide whether the city owed a duty to advise
appellees of the existence of the Department map. Assuming
but not deciding that the city did owe appellees such a duty
under the city code at issue, any breach of that duty falls within
the Tort Claims Act’s misrepresentation exception.
The Tort Claims Act’s misrepresentation exception immu-
nizes political subdivisions from claims of “misrepresentation,
deceit, or interference with contract rights.” § 13-910(7). The
leading U.s. supreme Court case considering this exception
under the federal Tort Claims Act is United States v. Neustadt,
366 U.s. 696, 81 s. Ct. 1294, 6 l. ed. 2d 614 (1961). In that
case, a home buyer reasonably relied on an erroneous federal
Housing Administration 	appraisal 	and 	the 	supreme 	Court
determined that the plaintiff’s negligence claim was barred by
the misrepresentation exception to the federal Tort Claims Act.
We find cases under the federal Tort Claims Act to be instruc-
tive and join other states employing the Neustadt reasoning to
the analysis of the misrepresentation exception under state tort
claims acts. see, e.g., Gibson v. Evansville Vanderburgh Bldg.,
725 n.e.2d 949 (Ind. App. 2000).
[9] In addressing the claims in Neustadt, the U.s. supreme
Court observed that the federal misrepresentation exception
insulates the government against liability for conveying false or
inaccurate information, whether that information was conveyed
based on willful or negligent misrepresentation. In determining
that the federal Tort Claims Act excepts acts of misrepresenta-
tion, the supreme Court defined negligent misrepresentation
as the breach of “the duty to use due care in obtaining and
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communicating information upon which that party may rea-
sonably be expected to rely in the conduct of his economic
affairs.” Neustadt, 366 U.s. at 706. It has been observed that
the “prophylaxis of the misrepresentation exception extends to
failures of communication.” Muniz-Rivera v. U.S., 326 f.3d 8,
13 (1st Cir. 2003).
After Neustadt, the U.s. supreme Court again addressed the
misrepresentation exception in Block v. Neal, 460 U.s. 289,
103 s. Ct. 1089, 75 l. ed. 2d 67 (1983). In Block, the supreme
Court focused on the distinction between the duty to obtain and
communicate accurate information from the duty to perform a
separate task. In Block, the plaintiff received a loan from the
farmers Home Administration (fmHA) to build her home. The
loan agreement provided that the fmHA should approve all
plans and could inspect and test all materials. The completed
house was defective, and plaintiff sued the fmHA alleging that
it had failed to properly inspect and supervise construction.
The fmHA defended by arguing that the suit was barred by the
misrepresentation exception in the federal Torts Claims Act.
The supreme Court determined that the claim was not barred
because the fmHA was subject to suit for allegedly breach-
ing a separate duty to supervise the construction and that this
duty was independent of its duty to communicate information.
The supreme Court in Block distinguished Neustadt, conclud-
ing that the gravamen of the action against the government in
Neustadt was that the plaintiffs were misled by the appraisal
statement of the federal Housing Administration prepared by
the government, whereas Block involved a separate duty to act.
Block, supra.
[10] This court has made a similar distinction in Wickersham
v. State, 218 neb. 175, 354 n.W.2d 134 (1984) disapproved on
other grounds, D.K. Buskirk & Sons v. State, 252 neb. 84, 560
n.W.2d 462 (1997). In Wickersham, we stated that where the
gravamen of the complaint is negligent performance of opera-
tional tasks rather than misrepresentation, the state cannot rely
upon the misrepresentation exception in the state Tort Claims
Act. We concluded that a misrepresentation was not at issue
in Wickersham.
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In considering whether dissemination of information or a
separate duty to act is at issue in a case, courts have noted
that when government misinformation is at issue, a plaintiff
must allege injury independent of that caused by the erroneous
information to avoid dismissal based on the misrepresentation
exception. see, e.g., Block, supra; Guild v. United States, 685
f.2d 324 (9th Cir. 1982); Rich Products Corp. v. U.S., 804 f.
supp. 1270 (e.D. Cal. 1992).
In the instant case, appellees urged and the district court
concluded that their negligence claim (a) regarding a failure to
advise is not barred by the misrepresentation exception because
it is an actionable event akin to Block and Wickersham. We are
not persuaded by this argument, and we conclude that the gra-
vamen of the allegation of negligence in claim (a) in this case
involved a failure by city employees to advise appellees of the
accurate flood plain information for their homes and not a fail-
ure to “utilize” the data under the lincoln Municipal Code, as
the district court erroneously concluded.
This case centers around what flood plain elevation infor-
mation was provided to appellees, either directly or indirectly
by way of their builders, and what information the city failed
to communicate. see Muniz-Rivera, supra. Appellees did not
claim that the city owed them a separate duty to inspect or
supervise the building of their homes. Compare Block, supra.
In this case, appellees alleged in claim (a) that the city had
failed to properly advise them of information. As the U.s.
supreme Court has stated, “[w]hile we do not condone care-
lessness by government employees in gathering and promul-
gating . . . information, neither can we justifiably ignore the
plain words Congress has used in limiting the scope of the
Government’s tort liability.” United States v. Neustadt, 366
U.s. 696, 710-11, 81 s. Ct. 1294, 6 l. ed. 2d 614 (1961). We
are similarly constrained.
because the gravamen of claim (a) alleging a failure to
advise involves the improper communicating of the flood
plain information relevant to appellees’ properties, the claim is
based on a misrepresentation. As a matter of law, the actions
of the city are shielded by the immunity provided by the
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misrepresentation exception in § 13-910(7) of the Tort Claims
Act, and the district court erred when it did not dismiss negli-
gence claim (a).
The District Court Erred When It Denied the City’s
Consolidated Motion for New Trial.
[11] The city moved for a new trial. The district court denied
the motion. A motion for new trial is addressed to the discretion
of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion. Poppe v. Siefker, 274 neb. 1, 735
n.W.2d 784 (2007). A judicial abuse of discretion exists when
a judge, within the effective limits of authorized judicial power,
elects to act or refrain from action, but the selected option
results in a decision which is untenable and unfairly deprives a
litigant of a substantial right or a just result in matters submit-
ted for disposition through the judicial system. Id.
The complaints contained five claims. The district court
effectively dismissed claims (d) and (e) based on the permit
exception to the Tort Claims Act. We have concluded that no
duty exists as to claims (b) and (c) and that based on the mis-
representation exception to the Tort Claims Act, the city was
immune from suit with respect to claim (a). because all five
claims should have been dismissed, the district court abused
its discretion when it denied the city’s consolidated motion for
new trial seeking that the judgments in favor of appellees be
vacated. such rulings are, therefore, reversed.
ConClUsIon
After dismissing negligence claims (d) and (e) based on
the permit exception to the Tort Claims Act, the district court
correctly determined that not all of appellees’ negligence
claims were barred by the permit exception. The district court
erred when it concluded that the city owed appellees a duty
under § 31-1001 et seq., and the Department’s regulations
thereunder, and that these provisions created a private cause
of action as sought in claims (b) and (c). finally, appellees’
allegation in claim (a) that the city was negligent for failing
to advise them of the Department map, grounded in lincoln
Mun. Code § 27.55.040, is barred by the misrepresentation
886 	279 nebRAskA RePoRTs

exception to the Tort Claims Act, regardless of whether a
duty exists under the code. The district court erred when
it failed to dismiss claim (a). All five claims of negligence
should have been dismissed. Accordingly, the rulings of the
district court denying the city’s motions to dismiss were error
and the denial of the city’s consolidated motion for new trial
asking that the judgments in favor of appellees be vacated
is reversed. The judgments entered in favor of appellees are
vacated, and the causes remanded with directions to dismiss
the complaints.
reverSed and reManded WiTH
direcTionS To diSMiSS.
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